Old cases may mean new trials for Guantanamo detainees

Old terror case files are being dusted off as the Obama administration considers prosecuting high-profile Guantanamo Bay detainees in civilian courts, focusing on crimes allegedly committed before Sept. 11, 2001.

Devlin Barrett

WASHINGTON — Old terror case files are being dusted off as the Obama administration considers prosecuting high-profile Guantanamo Bay detainees in civilian courts, focusing on crimes allegedly committed before Sept. 11, 2001. It's a tactic that could allow the government to limit testimony about harsh, more recent interrogations and to avoid revealing sensitive intelligence about al-Qaida.

Some of the detainees, including alleged 9/11 mastermind Khalid Sheik Mohammed, have criminal charges pending from alleged terror plots long before the 2001 attacks.

A senior Justice Department official, speaking on the condition of anonymity because the government is still reviewing cases, said bringing such detainees to trial on prior charges is one of many possibilities being considered. No decisions have been made.

Reviving the long-dormant cases would pose some legal hurdles — particularly a defendant's right to a speedy trial, given how long Mohammed and others have been in U.S. custody.

The detainees were captured in the globe-spanning war to defeat al-Qaida. The most wanted suspects were interrogated by the CIA before being imprisoned at Guantanamo Bay, Cuba. Now, the Obama administration must decide whether they stand trial before military tribunals or in civilian federal courts as a step toward shutting down the military prison.

If they are tried on older charges, not based on questioning since 9/11, prosecutors could argue that testimony or evidence regarding more recent interrogations could not be admitted into evidence. Under court rules, prosecutors are required to reveal to the defense much of what they have learned in an investigation concerning the charges a defendant faces. In past cases, such information has made its way back to terror plotters, including al-Qaida.

In Mohammed's case, he could face trial for what is known as the "Bojinka" plot. Three other people already have been convicted in the 1995 plot to simultaneously blow up commercial airliners across the Pacific Ocean — an idea that eventually morphed into the Sept. 11 airliner hijacking conspiracy.

When he was indicted in the Bojinka plot, Mohammed was seen as a little-known co-conspirator to Ramzi Yousef, the brains behind the 1993 World Trade Center bombing. One person was killed by a test run of the Bojinka plot.

Since his capture in 2003, Mohammed has become the most high-profile terror suspect in U.S. custody.

"I think there's value in bringing them to justice for those earlier acts, so I think that is a reason to do it," said Michael Garcia, who was the New York federal prosecutor on the Bojinka case and is now in private practice.

Lawyers for the Guantanamo detainees are almost certain to try to get post-9/11 charges tossed out of court based on the prisoners' long detention and the harsh interrogation methods used by their captors.

During his questioning in U.S. custody, Mohammed was waterboarded, a type of simulated drowning that Obama's attorney general Eric Holder has repudiated as torture. In custody, Mohammed confessed to dozens of terror plots, but his rough treatment may make it difficult to get that evidence into civilian court.

If a judge were to decide that Mohammed's treatment hopelessly tainted many of the charges against him, prosecutors might still salvage a criminal case against him with the old Bojinka charges.

"It does give you another channel for charges, rather than post-9/11, depending on how the other legal issues play out," said Garcia.

Another former terrorism prosecutor, Andrew McCarthy, said focusing on the old allegations, rather than more recent terror plots, could also prevent al-Qaida from figuring out how much the U.S. knows about its current operations and structure.

Speaking of the post-9/11 cases, McCarthy said, "The big thing about bringing these cases to civilian court is how much of what we currently know and is currently relevant and operational about the al-Qaida conspiracy would you risk having to turn over."

There are 21 current Guantanamo detainees who had been charged as enemy combatants by military commissions. Their trials were put on hold shortly after Obama took office. Of all the detainees at the naval base in Cuba, those 21 are the most likely to face trials in U.S. civilian courts.

Last week, the Obama administration transferred custody of an accused al-Qaida sleeper agent from the military to the Justice Department. Ali al-Marri, who was held for five years in a South Carolina Navy brig as an enemy combatant, now faces charges in federal court of providing material support for terrorism.

Trying suspects for old attacks could also work to the government's advantage in the case of Ahmed Kalfan Ghailani, who was indicted in the 1998 bombings of U.S. embassies in Africa. Those bombings killed 224 people, including 12 Americans.

Ghailani, a Tanzanian, is currently held at Guantanamo and is considered a high-value detainee. U.S. authorities say he helped plan and deliver the explosives in the embassy attack, and after that rose up through the al-Qaida ranks.

Both Mohammed and Ghailani were originally indicted in federal court in New York.

Another pre-9/11 case that could prove important is the 2000 bombing of the USS. Cole at a port in Yemen that killed 17 U.S. sailors.

One Guantanamo detainee, Abd al-Rahim al-Nashiri, was tried and convicted in absentia by Yemeni authorities for the that attack. Al-Nashiri was named as an unindicted co-conspirator in a 2003 U.S. indictment for the Cole bombing.

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